This Law Could Make or Break High-Capacity Magazine Bans
California rarely gives gun owners anything to get excited about. However, the recent block of California’s Proposition 63 presents a chance to get state bans of “high-capacity” magazines argued before the Supreme Court, where they might finally be exposed for what they are: an unconstitutional taking and restraint on the right to bear arms.
California has banned the transfer, sale, and manufacture of magazines capable of holding more than 10 cartridges since 2000, excluding those which were already owned. Proposition 63, which was set to take effect July 1, sought to change that by making the mere possession of these magazines punishable by a fine, jail time, or both, regardless of when they were acquired.
On June 30, U.S. District Judge Roger Benitez blocked Proposition 63, reasoning that if he did not, “hundreds of thousands, if not millions, of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property.” According to Benitez, banning all magazines that hold more than 10 cartridges is likely unconstitutional. He is right — and for more than one reason. The California law runs afoul of both the Second and Fifth Amendments.
According to the landmark 2008 case DC v. Heller, the Second Amendment protects all weapons in common use for lawful purposes, such as self-defense. To get around this, California argues it is not banning weapons per se but merely regulating the ammunition-feeding devices. This argument falls apart when exposed to the simple reality that guns do not work without magazines.
To be sure, many types of firearms can be fed with magazines that hold fewer than 10 rounds. But not every firearm has compliant magazines available. The Supreme Court has said the Second Amendment protects all firearms in common lawful use, not merely models popular enough to have California-compliant magazines made available. There is no reason Second Amendment protection of firearms should not be read as encompassing essential components such as magazines.
In the 42 states that do not have such laws, magazines holding more than 10 rounds are standard equipment in the vast majority of firearms on the market. The fact that the majority of guns in the country are fed from magazines that hold more than 10 rounds is strong evidence that such magazines are, indeed, defensive tools in “common lawful use.” Nobody should be fooled by California’s attempt to characterize this bill as anything but an attempt to eliminate arms protected by the Second Amendment.
The Fifth Amendment, meanwhile, protects against the taking of private property without just compensation. The Takings Clause is raised most commonly in litigation involving government seizure or regulation of land to benefit the public in some way (such as eminent domain). Anti-gun groups argue that laws like Proposition 63 do not constitute takings for two reasons: first, because the seizure and destruction of magazines would not constitute “an appropriation for the public benefit;” and second, because the owners are given the opportunity to sell or dispose of their property out of state. Both arguments are fatally flawed and fail to consider the nature of the property taken.
The option to hand over or get rid of the magazine fails to soften the punch of losing one’s rightful property. Either way, the property is lost. The destruction of the magazines in order to “take them off the street,” should still be considered a “public benefit” under the Takings Clause. More importantly, though, magazines are property lawfully possessed under a fundamental constitutional right.
Previous cases regarding high-capacity magazine bans have not made it to the Supreme Court. The one that came closest was abandoned in 2015 due to technical deficiencies that made the case a poor candidate for appeal. Regardless of how Benitez ultimately rules on Proposition 63, it will surely be appealed by the aggrieved party. The high profile nature of this law, the flagrancy of California’s ban, and the recent confirmation of pro-Second Amendment Neil Gorsuch to the Supreme Court all make this a great case to be fought all the way to the top. If so, there is a nonzero chance that magazine bans will be declared unconstitutional across the board.
California’s Proposition 63 presents a rare opportunity for the Court to step in and make clear that if Americans have a right to any weapon “in common lawful use,” that includes the whole weapon — not just the parts that don’t frighten the California legislature.
Matthew Larosiere holds a J.D. and LL.M in taxation from the University of Alabama School of Law and is preparing to sit for the Florida Bar. He is a Young Voices Advocate.